Penal Codes

A Summary of New York State Penal Code 130Sex Offenses as of 2008

In general, a sex offense occurs when a person does not consent to sexual conduct; a weapon, physical force or threats are used; a person is mentally disabled, mentally incapacitated or physically helpless; is committed to the care and custody of the state correctional system or hospital; or is under the age of seventeen.

§ 130.00 Sex offenses; definitions of terms. The following definitions are applicable to this article:

"Sexual intercourse" has its ordinary meaning and occurs upon any penetration, however slight.

"Oral sexual conduct" means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina.

"Anal sexual conduct" means conduct between persons consisting of contact between the penis and anus.

"Sexual contact" means any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing.

For the purposes of this article "married" means the existence of the relationship between the actor and the victim as spouses which is recognized by law at the time the actor commits an offense proscribed by this article against the victim.

"Mentally disabled" means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct.

"Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.

"Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

"Forcible compulsion" means to compel by either:

use of physical force; or

a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.

"Foreign object” means any instrument or article which, when inserted in the vagina, urethra, penis or rectum, is capable of causing physical injury.

"Aggravated sexual contact" means inserting, other than for a valid medical purpose, a foreign object in the vagina, urethra, penis or rectum of a child, thereby causing physical injury to such child.

"Health care provider" means any person who is, or is required to be, licensed or registered or holds himself or herself out to be licensed or registered, or provides services as if he or she were licensed or registered in the profession of medicine, chiropractic, dentistry or podiatry under any one of the following: article one hundred thirty-one, one hundred thirty-two, one hundred thirty-three, or hundred forty-one of the education law.

"Mental health care provider" shall mean a licensed physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker.

Lack of consent, along with forcible compulsion, includes circumstances when the victim clearly expressed they did not consent to the act of intercourse or by means of age, mental disability, mental incapacitation or being physically helpless and a reasonable person in the defendant’s situation would have understood the victim’s words, actions or condition.

NOTE: As of the Legislative session of 2006, two new crimes were added 130.95 and 130.96* and four of the Class B Felonies no longer have time limits for investigation and prosecution. In 2007 two new crimes were added **130.91 and 130.92**

A Summary of New York State Penal Code130 Sex Offenses as 2008

D=defendant V=Victim

Offense

Conduct

Lack of Consent

Category/Maximum Sentence Range

Minimum Determinant Sentence

First Degree Rape 130.35

Sexual Intercourse

Forcible compulsion OR V physically helpless OR D18+ and V under 13 OR V under 11

Class B * Violent Felony Max 12½ -25 years

5 years

Second Degree Rape130.30

Sexual Intercourse

Incapable of consent by reason of being mentally disabled or mentally incapacitated D over 18 V under 15

Class D Felony Max 2⅓-7years

Third Degree Rape130.25

Sexual Intercourse

Incapable of consent by reason D over 21 AND V under 17 OR V lack of consent OR D Health Care or Mental Health Provider

Class E Felony Max1⅓-4 years

First Degree Criminal Sexual Act 130.50

Oral or Anal Sexual Conduct

Forcible Compulsion OR V physically helpless OR V under 11 OR D 18+ AND V under 13

Class B *Violent Felony Max 12½ -25

5 years

Second Degree Criminal Sexual Act130.45 Class D

Oral or Anal Sexual Conduct

Incapable of consent by reason of being mentally disabled or mentally incapacitated D 18 AND V under 15

Felony Max 2⅓-7 years

Third Degree Criminal Sexual Act 130.40

Oral or Anal Sexual Conduct

Incapable of consent by reason D over 21 AND V under 17 OR V lack of consent OR D Health Care or Mental Health Provider

Class E Felony Max 1⅓-4 years

Forcible Touching130.52

Forcible Touching

Intentionally for no legitimate purpose, D grabs, squeezes or pinches the sexual or other intimate parts of V for purpose of degrading/abusing or gratifying own desire

Class A misdemeanor Max 1 year

First Degree Sexual Abuse 130.65

Sexual Contact

Forcible compulsion OR physically helpless OR V under 11

Class D *Violent Felony Max 2 1/3 – 7 years

2 years

Second Degree Sexual Abuse130.60

Sexual Contact

V incapable of consent other than age OR V under 14

Class A misdemeanor Max 1 year

Third Degree Sexual Abuse130.55

Sexual Contact

Any circumstances where V does not consent excepting D is not 5 years older than V

Class B misdemeanor Max 3 months

First Degree Course of Sexual Conduct Against a Child 130.75

Sexual Intercourse, oral or anal sexual conduct or aggravated contact

V under 11 D engages in two or more acts over a period of not less than three months OR D 18+ AND V under 13

Class B*Violent Felony Max 12½ - 25 years

5 years

Second Degree Course of Conduct Against a Child130.80

Sexual Contact

V under 11 D engages in two or more acts over a period of not less than three months OR D 18+ AND V under 13

A person commits a sexually motivated felony when he or she commits a specified offense for the purpose, in whole or substantial part, of his or her own direct sexual gratification.

Assault in the second degree as defined in section 120.05, assault in the first degree as defined insection 120.10, gang assault in the second degree as defined in section 120.06, gang assault in the first degree as defined in section 120.07, stalking in the first degree as defined in section 120.60, manslaughter in the second degree as defined in subdivision one of section 125.15,manslaughter in the first degree as defined in section 125.20, murder in the second degree as defined in section 125.25, aggravated murder asdefined in section 125.26, murder in the first degree as defined in section 125.27, kidnapping in the second degree as defined in section 135.20, kidnapping in the first degree as defined in section 135.25, burglary in the third degree as defined in section 140.20, burglary inthe second degree as defined in section 140.25, burglary in the first degree as defined in section 140.30, arson in the second degree asdefined in section 150.15, arson in the first degree as defined in section 150.20, robbery in the third degree as defined in section 160.05, robbery in the second degree as defined in section 160.10, robbery in the first degree as defined in section 160.15, promotingprostitution in the second degree as defined in section 230.30, promoting prostitution in the first degree as defined in section 230.32,compelling prostitution as defined in section 230.33, disseminating indecent material to minors in the first degree as defined in section 235.22, use of a child in a sexual performance as defined in section 263.05, promoting an obscene sexual performance by a child as defined in section 263.10, promoting a sexual performance by a child as defined in section 263.15, or any felony attempt or conspiracy to commit any of the foregoing offenses.

** Sentencing 130.92

When a person is convicted of a sexually motivated felony pursuant to this article, and the specified felony is a violent felony offense, as defined in section 70.02 of this chapter, the sexually motivated felony shall be deemed a violent felony offense.

When a person is convicted of a sexually motivated felony pursuant to this article, the sexually motivated felony shall be deemed to be the same offense level as the specified offense the defendant committed.Persons convicted of a sexually motivated felony as defined in section 130.91 of this article, must be sentenced in accordance with the provisions of section 70.80 of this chapter.

*Predatory Sexual Assault 130.95

Same as first degree rape, criminal sexual act, aggravated sexual abuse or course of sexual conduct against a child causing serious physical injury OR uses/threatens use of dangerous instrument OR previously conviction of Penal codes 130, 255.25 (incest)or 263.05 (use of child in performance)

Forcible compulsion OR V physically helpless OR D engages in two or more acts over a period of not less than three months with V under 11

*Violent Felonies require determinate terms, which eliminate parole and add a period of post release supervision. Minimum sentences exist for first and second violent offenses as stated but persistent violent felonies retain the indeterminate terms of sentencing.

Other offenses that may occur along with the above include incest, kidnapping, endangering the welfare of a child, assault, offenses against public sensibilities, unlawful imprisonment, sexual performance by a child, coercion, or harassment and are covered under other penal codes and carry similar penalties.

Need Help?

If you have been sexually assaulted–call the New York State Hotline for Sexual Assault and Domestic Violence.